Report of the International Law Commission: ICRC statement to the United Nations, 2016

United Nations General Assembly, 71st session, Sixth Committee, Report of the International Law Commission on the Work of Its sixty-eighth session (A/71/100), October – November 2016. Statements by the ICRC.

The ICRC takes note, with appreciation, of the report of the Commission’s sixty-eighth session and congratulates all members of the Commission for their hard work.

Turning to the topic on the Protection of persons in the event of disasters, the ICRC congratulates the International Law Commission for its adoption, on second reading, of a draft preamble and 18 draft articles, together with commentaries thereto. We also commend Special Rapporteur, Mr. Eduardo Valencia-Ospina for his dedication and commitment to the topic.

Recent situations have illustrated the serious humanitarian consequences of disasters and the necessity to consolidate the legal framework governing the protection of persons when they occur. Our colleagues in the wider International Red Cross and Red Crescent Movement are tireless in addressing the humanitarian needs that arise from such disasters and know the critical importance of work in this area. The ICRC has no doubt that the draft articles and their commentaries will constitute an important contribution to contemporary international law in accordance with the leading role played by the Commission in the promotion of the progressive development of international law and its codification.

In relation to the substance of the Draft Articles and their commentaries, the ICRC has always emphasized that it is crucial they do not contradict international humanitarian law rules. Our view has long been that this objective can only be achieved by expressly excluding situations of armed conflict, including in so-called "complex” emergencies, from the scope of application of the Draft Articles. We take note, with appreciation, of the Commission’s revised approach regarding the relationship of the draft articles with the rules of international humanitarian law. Unfortunately, however, in the ICRC’s view, these amendments do not fullyaddress our concerns which were conveyed in written observations to the ILC in January 2016.

The ICRC also takes note of the Commission’s recommendation to the General Assembly regarding the elaboration of a convention on the basis of the draft articles. Whichever form these articles may take, we express our concern that, as drafted, they present an increased risk of conflict of norms with international humanitarian law and ultimately undermine the ability of impartial humanitarian organizations, such as the ICRC, to carry out their humanitarian activities in a principled manner and in accordance with the mandate assigned to them by States.

The ICRC follows with much interest the International Law Commission’s work on the identification of customary international law and congratulates the Commission for its adoption, on first reading, of a set of 16 draft conclusions, together with commentaries thereto. We commend the Special Rapporteur, Sir Michael Wood, for his work on the topic.

As you may know, in 2005, mandated by the 26th International Conference of the Red Cross and Red Crescent, the ICRC published a study on customary IHL, based on almost ten years of research. Keen attention to the “way in which the existence and content of rules of customary international law are to be determined” has therefore long been of major importance to us. We thus greatly appreciate the Commission’s consideration of questions arising in identifying customary international law – questions that also the customary IHL study needed to address – such as which forms of State practice are to be taken into account, whether there is a “predetermined hierarchy among the various forms of practice”, or what the significance of treaties is for customary international law. We are pleased that the considerations underlying the customary IHL study are generally in line with the approach taken by the Commission.

For ten years now, we have also been updating the practice section of the customary IHL study; making the study, together with regular practice updates, available on our on-line database customary IHL database, thereby contributing to the accessibility of IHL practice.

We look forward to continuing engaging with the Commission’s important work on the identification of customary international law.

***

The ICRC would like to take this opportunity to comment on the work of the Commission and of Special Rapporteur Mr Sean Murphy on the important topic of crimes against humanity.The ICRC welcomes initiatives that contribute to the prevention and repression of international crimes in order to ensure accountability and end impunity.

The ICRC commends the Special Rapporteur’s commitment to ensuring that the Draft Articles and the Commentaries are based on existing international law and complement the Rome Statute, in particular, and other relevant treaties. In the ICRC’s view, it is crucial that any new instrument be consistent with, and not conflict with or undermine, existing international law. Given the global nature of international crimes, it is important to continue working to strengthen inter-State cooperation in order to effectively address international crimes through their prevention and repression. In this regard, the focus of the Draft Articles on improving national measures, as well as cooperation between States and with international criminal tribunals, to prevent and punish crimes against humanity is important. The ICRC would also like to recall that it remains critical to ensure the universal character and the integrity of the Rome Statute, and to continue working to achieve its effective implementation. Furthermore, the promotion of complementarity under the Rome Statute remains important in order to increase the prevention and repression of crimes against humanity at the national level, and the strengthening of national capacities and international cooperation would contribute to this.

Finally, the ICRC would like to thank the Special Rapporteur for the consultations that he has carried out in his consideration of this topic and for taking into account many of the comments we provided on the Draft Articles. We will continue to follow the International Law Commission's work on the topic of crimes against humanity with great interest and we reaffirm our commitment to contribute to the work of the Special Rapporteur.

***

Turning now to the topic of the protection of the environment in relation to armed conflict, the ICRC commends the International Law Commission for its work on the topic, and we extend our congratulations to Special Rapporteur Dr Marie Jacobsson in particular, not only for her dedication to this topic, but also for her many years of distinguished service as a member of the Commission.

The protection of the natural environment during armed conflict is an important issue for the ICRC. There is an urgent need to find better ways of addressing the immediate and long-term consequences of damage to the natural environment in relation to armed conflict. Preventive action is also needed.

Ensuring better legal protection during armed conflict requires that existing rules of IHL be better disseminated, implemented and enforced. However, sometimes it is also necessary to address normative weaknesses through a reinforcement of the law. In the ICRC’s view, one area in which the law would benefit from further clarification and development concerns the protection of the natural environment in times of armed conflict.

The law protecting the natural environment during armed conflict is not always clear; nor is it sufficiently developed. For instance, greater clarity as to how other bodies of international law may provide complementary protection to the environment, including during armed conflict, remains important. We would like to stress the importance that is attached to this topic and reiterate our strong support for its continuation into the next quinquennium.

We would also like to recall the importance of ensuring that the Commission’s work on the protection of the environment in relation to armed conflict remains in line with existing rules of IHL. We look forward to continuing consultations with the Commission on this topic, including on the provisionally adopted Draft Principles and their Commentaries, and on future work, for example with respect to those IHL issues identified by the Special Rapporteur in her third report as deserving further elaboration.